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Walters v. City of Kenova

Supreme Court of West Virginia

May 11, 2018

Jeremy Walters, Plaintiff Below, Petitioner
v.
City of Kenova, W.Va., and Ray Mossman, Defendants Below, Respondents

          Wayne County 16-C-067

          MEMORANDUM DECISION

         Petitioner Jeremy Walters, by counsel Kevin P. Davis, appeals the April 19, 2017, order of the Circuit Court of Wayne County that granted summary judgment to Respondent City of Kenova, W.Va. and Respondent Ray Mossman, the City of Kenova's former police chief, in petitioner's action for defamation. Respondent City of Kenova filed a response in support of the circuit court's order by counsel Perry W. Oxley, Laci B. Browning, and L.R. Sammons, III. Respondent Ray Mossman also filed a response in support of the circuit court's order, by counsel Tyler B. Smith. Petitioner appeals the circuit court's findings that he could not satisfy the "falsity" element of a defamation claim and that Respondent City of Kenova was immune from liability under the Governmental Tort Claims and Insurance Reform Act, West Virginia Code § 29-12A-5(a)(12).

         This Court has considered the parties' briefs and the record on appeal. The facts and legal arguments are adequately presented, and the decisional process would not be significantly aided by oral argument. Upon consideration of the standard of review, the Court finds no substantial question of law and no prejudicial error. For these reasons, a memorandum decision affirming the circuit court's order is appropriate under Rule 21 of the Rules of Appellate Procedure.

         At 4:12 p.m. on June 2, 2015, police officers from the City of Kenova's Police Department arrested petitioner for felony "possession of a controlled substance (hydrocodone)." Later that same day, Respondent Ray Mossman ("Mr. Mossman"), then the City of Kenova's chief of police, authored a post on the "KenovaPD" Facebook page[1] in which he said five people had been arrested that day, and one of the five had been arrested for the unlawful possession of cocaine. Respondents claim Mr. Mossman did not name any of the arrestees. Petitioner counters that the post named him as the person arrested for possession of cocaine, despite the fact that the police arrested him for possession of hydrocodone. Petitioner admits that he never saw the post, but claims a friend told him the post named petitioner and said the police arrested him for possession of "crack cocaine." However, because the City of Kenova deleted the post a month after Mr. Mossman placed it on Facebook; the parties' competing claims cannot be proved.

         A few hours after petitioner's arrest, petitioner's wife called Mr. Mossman and told him the Kenova police charged petitioner with the unlawful possession of hydrocodone. Around 9:00 p.m. that same evening, Mr. Mossman edited the Facebook post to say the arrest was for the unlawful possession of hydrocodone. At the time Mr. Mossman edited the post, it had 220 "likes."[2]

         On July 24, 2015, petitioner published the events of June 2, 2015, on his own Facebook page. In that post, petitioner gave his name and stated that the Kenova Police arrested him on June 2, 2015, and that Mr. Mossman thereafter wrongfully claimed the police charged him with possession of crack cocaine.

         On July 1, 2015, a month after petitioner's arrest, a television reporter interviewed the City of Kenova's new mayor. Petitioner happened to be at the Kenova City Hall during that interview. Petitioner approached the reporter and, on camera, said that the Kenova police arrested him for having his grandmother's prescription hydrocodone in his car, and that Mr. Mossman wrongfully posted on Facebook that the police arrested him for possession of crack cocaine. Thereafter, petitioner's name and the contents of Mr. Mossman's June 2, 2015, Facebook post were aired on the television newscast that included the new mayor's interview.

         The reporter also interviewed Mr. Mossman on camera. During that interview, the reporter told Mr. Mossman about petitioner's comments and asked Mr. Mossman about the post regarding petitioner's arrest. Mr. Mossman did not mention petitioner's name, but said, "[I]t was hydrocodone. It's the same kind of charge, but yeah, it was a misprint on my part, and I changed it." The television newscast aired Mr. Mossman's interview immediately after it aired the new mayor's interview. Petitioner's charge for unlawful possession of hydrocodone was still pending at the time.

         On July 2, 2015, petitioner shared the internet link to the television newscast containing the new mayor's and Mr. Mossman's interviews on his Facebook page. That day or the next, the "KenovaPD" page was taken down and all the page's posts, including the one allegedly about petitioner, were deleted.

         Petitioner's unlawful possession of hydrocodone charge was later dismissed. Then, on December 3, 2015, petitioner posted the following on his Facebook page:

So since my charges have been dismissed the cops are supposed to give my grandmothers [sic] meds back to me. . . . Still haven't gotten it back. They keep giving excuses!!! It's cool cause every time they do I go cha Ching!!!!

         Additionally, on February 9, 2016, petitioner posted the following on his Facebook page:

Hello, my name is Jeremy Walters. I was arrested for having my grandmother's meds that I had just picked up from the pharmacy. The meds were in my glove box, in the bottle, stapled up in the bag still. I told them I was her Medical Power of Attorney and they had no interest in seeing the papers. Mossman posted on Kenova PD Facebook that I was arrested for crack cocaine. My charges have been dropped. . . .

         On May 20, 2016, petitioner filed this defamation case against respondents. Petitioner alleged that Mr. Mossman's post damaged his reputation because it wrongfully reported the Kenova police arrested petitioner for the unlawful possession of crack cocaine. In his complaint, petitioner alleged that more than 5, 000 people "liked" the "Kenova PD" page, and that those in the area would have seen ...


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